Editor's Note: Due to a formatting error, this post was originally misattributed to Cass Sunstein. We regret the error.
By Sanford Levinson
Imagine the following quite plausible events over the next 20 months:
1. Both Houses of Congress are repeatedly rebuffed in their attempts to subpoena the testimony of executive branch officials who almost certainly played key roles in the probably illegal politiciziation of the Department of Justice. (Even if not illegal at the time, Congress can certainly investigate it as a predicate for considering whether new legislation needs to be passed to make the DOJ less subject to crass political takeover.) Congress goes to Court to enforce the subpoenas, but, of course, the process, including appeals, is basically never-ending, so, as a practical matter, the Administration wins.
2. Both Houses of Congress pass legislation requiring the winding down of the Iraq War, but the President vetoes it. One House actually has enough votes to override, the other does not, so under the formal rules the President wins.
3. An "anti-war" Democrat--by next year this will probably include everyone except Joseph Lieberman--is elected President on a platform of "withdrawal as quickly as humanly possible" (any serious withdrawal prior to next September having been stifled by the presidential vetoes, coupled with congressional unwillingness to cut off all funding in the context of continued appeals to "support our troops" and the absence of any "Plan B" by the Administration that countenances withdrawal and the acknowledgment of loss and the dying in vain of many brave American (and other) military personnel). So, between November 4, 2008-January 20, 2009, we will have "two presidents," a politically legitimate one elected on an anti-war platform and a constitutionally entrenched one who will continue to possess all prerogatives of office for another ten weeks. Just as George H. W. Bush chose to send American troops to Somalia during his own "interregnum," with, we now know, basically catastrophic consequences for the Clinton presidency, George W. Bush might choose to engage in provocative action, or outright bombing, of Iran. (Indeed, one might add to this list of possibilities the perhaps less plausible, but still thinkable, ascension to the presidency of Vice President Dick Cheney following a fatal heart attack suffered by George W. Bush while engaging in his relentless exercise. So imagine that it is Cheney who announces such actions.) The President, whether Bush or Cheney, does this in the undoubtedly sincere belief that their actions are in the best interest of the United States.
Perhaps the Libby commutation is not a full-fledged "constitutional crisis," but only a symptom of the crisis generated by the Bush presidency and use of presidential power for unscrupulous ends. But would any readers reject the appellation "constitutional crisis" to the quite foreseeable scenarios outlined above? Someone might argue that "2" and "3" can't, as a formal matter, be "constitutional crises" because, after all, the President is doing nothing unconstitutional in vetoing legislation or staying on until the end of his term, and using all the legal powers at his command to do what he believes to be best for the United States. But my central argument, rightly or wrongly, is that our dysfunctional Constitution itself generates crises as well, on occasion, as providing solutions to them. If one doesn't like the scenarios outlined above, the solution is not to denounce George W. Bush--though I remain willing to do so at the drop of a hat--but, rather, a Constitution that leaves us without significant recourse when we happen to have a dangerously incompetent and stunningly ignorant Chief Executive (backed up by a basically fascistic Vice President). From my point of view, focusing on the deficiencies of Bush and Cheney can simply become a dangerous distraction from the conversation we ought to be having about basic questions of constitutional design. There is, after all, no reason to believe that the problems revealed by the Bush Administration will never again arise in any future presidency.
The easiest way, incidentally, to resolve the problem of future Cheney's is to abolish the office of the Vice President, an argument developed in a recent op-ed in the Boston Globe. Other problems are far more difficult to resolve, alas.